Cellspin Soft, Inc. v. Canon U.S.A., Inc.

Filing 121

ORDER by Judge Kandis A. Westmore granting 113 , 114 , 118 , 119 Ex Parte Application for judgment-debtor's examination. Judgment Debtor Exam set for 5/16/2019 01:30 PM in Oakland, Courtroom 4, 3rd Floor. (kawlc1, COURT STAFF) (Filed on 4/25/2019)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

CELLSPIN SOFT, INC.,
Plaintiff,

8
9
10

United States District Court
Northern District of California

11

Case No. 4:17-cv-05938-YGR (KAW)
ORDER GRANTING DEFENDANT'S
RENEWED EX PARTE APPLICATION
FOR DEBTOR'S EXAMINATION

v.

Re: Dkt. Nos. 113, 114, 118, 119

CANON U.S.A., INC.,
Defendant.

12
13

On November 21, 2018, the Court granted Defendant Canon U.S.A., Inc.’s ex parte

14

application for a debtor’s examination, and set the judgment-debtor examination of Plaintiff

15

Cellspin Soft, Inc. for February 21, 2019. (11/21/18 Order, Dkt. No. 110.) On February 21, 2019,

16

the parties appeared, but they did not hire a court reporter, so the examination did not go forward.

17

(Minute Entry, Dkt. No. 112.)

18

On March 5, 2019, Defendant filed a renewed ex parte application. (Dkt. Nos. 113 & 114.)

19

On March 15, 2019, Plaintiff filed an opposition, in which it raised essentially the same

20

unsuccessful arguments that it had raised previously. (Pl.’s Opp’n, Dkt. No. 115.) On March 22,

21

2019, Defendant filed its reply. (Defs.’ Reply, Dkt. No. 117.)

22

On April 16, 2019, Defendant filed a second renewed ex parte application to notice the

23

examination for May 16, 2019. (Def.’s Mot., Dkt. No. 118 & 119.) On April 23, 2019, Plaintiff

24

filed a response that is virtually identical to the March 15 opposition. (Dkt. No. 120.)

25
26

I.

DISCUSSION

In its opposition, Cellspin again raises the arguments that the request is unduly

27

burdensome, duplicative, harassing, and premature because the case is on appeal. (Pl.’s Opp’n at

28

10-14.) The Court disagrees for the reasons set forth in the November 21, 2018 order, and

1

incorporates that order herein. (See 11/21/18 Order at 2-3.)
Additionally, Plaintiff argues that it already appeared at the February 21, 2019

3

examination, so it should not have to appear again. (Pl.’s Opp’n at 16.) Plaintiff argues that its

4

designee took an entire day off from work to be examined, but Defendants’ failure to procure a

5

court reporter prevented the examination from going forward. Id. Plaintiff argues that the

6

examination could have been recorded using a smartphone, which would have been less

7

burdensome than rescheduling the examination and requiring its corporate designee to appear

8

again at a later date. Id. at 17. This argument is unavailing. While Defendants should have

9

arranged for a court reporter to memorialize the original examination, Plaintiff brought a number

10

of unmeritorious lawsuits against multiple defendants, who have since obtained judgments against

11

United States District Court
Northern District of California

2

it. Now, four defendant corporations in three related cases are coordinating to hold a single

12

judgment-debtor examination instead of having Plaintiff undergo examination four times. Thus,

13

while Defendants should have been prepared to go forward on February 21, Plaintiff’s designee

14

will only have to appear twice rather than four times, which is to his benefit.
That the parties could have used a smartphone to record the proceedings, while perhaps

15
16

novel, is not persuasive, because a court reporter can certify that the transcript is true and correct.

17

Moreover, since the judgment-debtor examination was not held, California Code of Civil

18

Procedure § 708.110(c) is inapplicable, and the Court may re-order the examination to occur at

19

any time. See Cal. Civ. Proc. Code § 708.110(b).
Accordingly, Defendants’ renewed ex parte application is GRANTED.

20
21

///

22

///

23

///

24

///

25

///

26

///

27

///

28

///
2

II.

1
2

CONCLUSION

In light of the foregoing, Defendant’s renewed ex parte application for an order requiring

3

Cellspin Soft Inc. to appear for a judgment-debtor examination is GRANTED, and the

4

examination is set for May 16, 2019 at 1:30 p.m. The parties are advised that they are responsible

5

for hiring a court reporter for the proceeding, and that the district court will not assist them in

6

procuring same.

7
8

IT IS SO ORDERED.
Dated: April 25, 2019
__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3